Milwaukee Journal Sentinel

Delaying primary would be tough.

State law sets the date; emergency rule unclear

- Patrick Marley

MADISON – Top Wisconsin officials so far are not advocating for postponing the April 7 presidenti­al primary because of the coronaviru­s pandemic, and doing so would be much more difficult here than it has been in other states.

Louisiana and Georgia last week postponed their presidenti­al primaries amid fears of the deadly outbreak sweeping the globe. Wisconsin officials have not taken similar steps, and there may be no easy way to do it here, experts in election laws said.

The cleanest way to do it would be for the Legislatur­e to pass a law changing the election date. That would require Republican­s who control the Legislatur­e and Democratic Gov. Tony Evers to get on the same page — something they have rarely been able to do.

Evers said Monday he was not considerin­g delaying the election “at this time,” even as he banned gatherings of more than 50 people.

“We’re hoping to hold it on the date if we possibly can,” he told reporters.

He made his comment as Ohio Gov. Mike DeWine announced he would bring a lawsuit to try to extend his state’s primary, which is scheduled for Tuesday, to June 2. Three other states — Arizona, Florida, and Illinois — are supposed to have presidenti­al primaries on Tuesday.

Wisconsin election date set by law

Wisconsin statutes require the state to hold its spring election on the first Tuesday in April. On the ballot this year are the presidenti­al primary, a seat on the state Supreme Court and local offices, including Milwaukee mayor and Milwaukee County executive.

And those offices are elected to fixed terms, adding a layer of complicati­on to moving Wisconsin’s election date compared with states where the presidenti­al primary is the only race on ballot.

Barry Burden, director of the Elections Research Center at the University of Wisconsin-Madison, noted state laws do not explicitly say the governor can suspend most laws during health emergencie­s but also do not expressly prohibit doing so.

“This seems to be a gray area that is not spelled out fully in state law,” he said by email.

Madison election attorney Jeffrey Mandell said he believed lawmakers would have to act to change the date of the election. The governor’s powers during an emergency allow him to suspend state laws related to hospitals and pharmacies but do not mention other laws like the one that establishe­s the date of the election, Mandell noted.

“The fact that the Legislatur­e has considered the issue and authorized only these very limited exceptions would seem to militate against reasoning that there’s some inherent power to waive other statutes,” he said by text message. “Nor is there anything in the (state) constituti­on’s provisions setting forth the governor’s powers that seems broad enough to let him change the election date.”

He said he didn’t know whether a court would have the power to move the election date, though he noted they can extend voting hours.

“I think it’s hard to imagine a court postponing the election. But all kinds of things are happening that I would have had trouble imagining,” Mandell said by text message.

Michael Maistelman, a Milwaukee election attorney, had a more expansive view of what Evers and the courts could do.

He said he believed the governor could use his emergency powers to delay the election if he determined the current date would threaten the safety of the public. And courts could use their ability to extend polling hours to change the date of the election, he said.

Those steps could be taken to avoid going through the lengthy process of passing a law, he said.

“The point of being able to act quickly in a grave emergency such as the current pandemic that we are facing is to act decisively and rapidly without having to pass new laws, which will slow the response time to an emergency,” he said by email.

Specifically, Wisconsin law gives the governor the power during health emergencie­s to issue orders to protect safety and security. The governor’s Health Services Department also has the power to put in place emergency measures to control communicab­le diseases.

Rick Esenberg, president of the Wisconsin Institute for Law & Liberty, said normally changing the date of the election would require legislativ­e action but noted the public health emergency that Evers has declared “gives him what formally seem to be unlimited powers.”

The emergency declaratio­n would seem to allow him to change the election date if he determined it was necessary to protect the public, Esenberg said by email. Such an order could face a legal challenge arguing his actions infringed on the right to vote, he said.

Madison election attorney Douglas Poland said he didn’t see how the governor could issue such an order delaying the election.

A federal court, however, could put off the election if it found holding the election would violate the constituti­onal rights of minorities or other protected classes of voters, Poland said by text message.

State Rep. David Crowley, a Democrat running for Milwaukee County Executive, said the state should consider delaying the election.

Crowley wants delay considered

State Rep. David Crowley, a Democrat running for Milwaukee County Executive, said the state should consider delaying the election.

“I’ve spent my career fighting to make it easier for people to vote,” he said in a text message. “There’s nothing easy about voting during this crisis. I have serious concerns about the voices of citizens across the state not being heard.”

Evers and other officials have been urging people to vote absentee or early so they don’t have to go to the polls on April 7.

Early voting began Monday in Milwaukee, and a steady volume of voters showed up at the Zeidler Municipal Building Monday to cast ballots.

Poll workers wore rubber gloves, voters used pencil erasers to make their selections on touch screens, and hand sanitizer and disinfecta­nt wipes were readily available.

Teachers Holly and John Steffes were among those voting. Their daughter Lucy registered but has to wait to vote until April 1, the day she turns 18.

“I feel like the virus is going to kick in and people would be more isolated, more frenzied,” Holly Steffes said. “I wanted to make sure I voted before things got worse.”

Shane Corcoran wore two pairs of gloves as he cast his ballot.

“You just use basic common sense precaution­s, and you’re good to go,” the 66-year-old retired Milwaukee firefighter said. “I was in emergency medicine for 28 years. It’s almost instinctiv­e for me to take precaution­s.”

Neil Albrecht, executive director of the Milwaukee Election Commission, said officials should consider postponing the election.

“In terms of making decisions on whether or not this can and should move forward we should be sure every person has the opportunit­y to vote in the election,” he said. “As it evolves and if it becomes evident that not every person has that opportunit­y it’s another reason why moving forward has to be evaluated.”

Milwaukee has received about 15,000 requests for absentee ballots, he said. For the 2016 presidenti­al primary, about 10,000 people voted absentee.

The deadline to request an absentee ballot is April 2, but officials say voters should request them as soon as they’re able.

Late last week Louisiana moved its presidenti­al primary from April 4 to June 20 and Georgia pushed back its primary from March 24 to May 19. Officials were able to put in place the delays without the approval of lawmakers, but laws on moving elections vary by state.

In Ohio, the governor said he couldn’t act on his own but would take legal action to extend Tuesday’s primary. He said there was no way to hold the primary and comply with guidance from the federal Center for Disease Control and Prevention limiting public gatherings.

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